RENDERED: SEPTEMBER 24, 2015 

TO BE PUBLISHED 

Suprrntr &Turf of rufuritv 

2014-SC-000305-WC 

CONSOL OF KENTUCKY, INC. APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NOS. 2013-CA-000281-WC AND 2013-CA-000389-WC 

WORKERS' COMPENSATION BOARD NO. 12-WC-00062 

OSIE DANIEL GOODGAME, JR.; 

HONORABLE JEANIE OWEN MILLER, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD APPELLEES 

AND 2014-SC-000333-WC 

OSIE DANIEL GOODGAME, JR. APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NOS. 2013-CA-000281-WC AND 2013-CA-000389-WC 

WORKERS' COMPENSATION BOARD NO. 12-WC-00062 

CONSOL OF KENTUCKY, INC.; 

HONORABLE JEANIE OWEN MILLER, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD APPELLEES 

OPINION OF THE COURT BY JUSTICE KELLER 

AFFIRMING 

Osie Goodgame, Jr. (Goodgame), who worked for Consol of Kentucky, 

Inc. (Consol) in both Kentucky and Virginia, alleged that he suffered 
cumulative trauma injuries to his extremities and spine while employed by 

Consol. The Al.,J dismissed Goodgame's claim finding that he had not filed it 

within the applicable statute of limitations. The ALJ also found that Kentucky 

could not exercise extraterritorial jurisdiction over any injuries that Goodgame 

suffered while he was employed in Virginia. The Workers' Compensation Board 

(the Board) affirmed the ALJ's finding regarding jurisdiction. However, it 

vacated the ALJ's finding regarding the statute of limitations and remanded 

with instructions for the ALJ to find when Goodgame's injury became manifest. 

The Court of Appeals affirmed. Consol appeals, arguing that Goodgame's claim 

is time barred regardless of the date of manifestation, and Goodgame crossappeals arguing that Kentucky has extraterritorial jurisdiction over his claim. 

For the following albeit somewhat different reasons, we affirm the Court of 

Appeals. 

I. BACKGROUND. 

Goodgame, a Kentucky resident, began working for Consol as a coal 

miner in 1992 and worked for Consol in Kentucky until July 31, 2009, when 

Consol stopped operations at the mine where he worked. Pursuant to an offer 

from Consol, Goodgame began working at one of its mines in Virginia on or 

about August 1, 2009. On January 19, 2010, Goodgame resigned and took 

early retirement from Consol. 

Goodgame filed an Application for Resolution of Injury Claim on January 

17, 2012. In his claim form, Goodgame alleged that he suffered injuries to his 

"upper and lower extremities, and to [his] entire spine" as a result of the 

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cumulative trauma he suffered performing work as an underground coal miner. 

Consol filed a Notice of Claim Denial and motion to dismiss, arguing that 

Goodgame's claim was time barred because he had not filed it within two years 

of the date he last worked in Kentucky. The ALJ overruled Consol's motion. 

Consol filed an appeal, which the Board dismissed as being from a non-final 

order. The parties then filed their proof, and the ALJ held a hearing. 

Following the hearing, the ALj dismissed Goodgame's claim, finding that, 

at the latest, Goodgame's two-year statute of limitations began to run on 

August 1, 2009, two years after he last worked in Kentucky. Furthermore, the 

ALJ found that Goodgame had not suffered any injury in Virginia and that 

Kentucky had no jurisdiction over any injury Goodgame may have suffered in 

Virginia. The Board reversed and vacated, holding that the ALJ had not 

conducted the proper analysis in determining Goodgame's date of injury for 

statute of limitations purposes. However, the Board affirmed the ALJ's 

decision regarding extraterritorial jurisdiction. A divided Court of Appeals 

panel, citing heavily to the Board's opinion, affirmed. We set forth additional 

facts as necessary below. 

II. STANDARD OF REVIEW. 

The ALJ has the sole discretion to determine the quality, character, and 

substance of the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 

418, 419 (Ky. 1985). However, when there are mixed questions of fact and law, 

we have greater latitude in determining if the underlying decision is supported 

by probative evidence. Purchase Transportation Services v. Estate of Wilson, 39 

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S.W.3d 816, 817-18 (Ky. 2001). Furthermore, if the issue presented is one of 

statutory interpretation, our review is de novo. Saint Joseph Hosp. v. Frye, 415 

S.W.3d 631, 632 (Ky. 2013). With these standards in mind, we review the 

issues raised on appeal by Goodgame and Consol. 

III. ANALYSIS. 

A. Statute of Limitations. 

Consol argues that the ALJ correctly applied the statute of limitations to 

dismiss Goodgame's claim and that remand for additional fact finding is not 

necessary. We disagree. 

Kentucky Revised Statutes (KRS) 342.185(1) provides in pertinent part 

that: 

[N]o proceeding under this chapter for compensation for an injury . 

.. shall be maintained unless a notice of the accident shall have 

been given to the employer as soon as practicable after the 

happening thereof and unless an application for adjustment of 

claim for compensation with respect to the injury shall have been 

made with the department within two (2) years after the date of the 

accident . . . . 

As the Court noted in Cos/ow v. General Electric Co., 877 S.W.2d 611 (Ky. 

1994), there are two ways to trigger the running of the statute of limitations in 

Kentucky workers' compensation claims. One is the discovery method, which 

applies, in part, to occupational disease claims. KRS 342.316(4)(a) "requires [a] 

claimant to file within three years after the last injurious exposure to the 

occupational hazard or after the employee first experiences a distinct 

manifestation of an occupational disease," whichever is later. 

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The other way to trigger the statute of limitations is the "date of accident" 

method, which applies to injury claims. KRS 342.185(1) requires a claimant to 

file an application for adjustment of injury claim within two years of the 

"accident." Notably, KRS 342.185(1) does not contain the "last injurious 

exposure" language in KRS 342.316(4)(a), which makes sense when the injury 

is the result of one traumatic event or accident, e.g. a broken leg as a result of 

a fall. The difficulty arises with cumulative trauma injuries, which have 

similarities to both single-traumatic-event injuries and occupational diseases. 

Like single-traumatic-event injuries, cumulative trauma injuries are the result 

of trauma and, like occupational diseases, they develop over time. 

The Court first recognized the compensability of injuries that resulted 

from cumulative trauma or gradual wear and tear in 1976. 1 Haycraft v. 

Corhart Refractories Co., 544 S.W.2d 222 (Ky. 1976). The first attempt to 

determine how to apply KRS 342.185 to such injuries occurred in 1988. 

Randall v. Pendland, 770 S.W.2d 687 (Ky. App. 1988). The Court of Appeals 

noted in Pendland that the plaintiff had suffered "many mini-traumas" rather 

than "one accidental injury" from which to begin running the statute of 

limitations. Id. at 688. Therefore, the Court determined "that the date for 

clocking [the] statute of limitations begins when the disabling reality of the 

injury becomes manifest." Id. That remained the law until 1999, when this 

Court held in Alcan Foil Products v. Huff 2 S.W.3d 96 (Ky. 1999) that the 

1 The legislature subsequently added cumulative trauma to the definition of "injury." 

KRS 342.0011(1). 

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manifestation of disability language in Pendland refers to a "worker's discovery 

that an injury had been sustained." Id. at 101. Thus, for cumulative trauma 

claims, this Court interpreted the "date of accident" language in KRS 

342.185(1) to mean the date of discovery. Following Huff, this Court refined 

the cumulative trauma discovery rule in Hill v. Sextet Mining Corp., 65 S.W.3d 

503 (Ky. 2001) holding that a claimant does not have to self-diagnose and is 

not required to give notice of a work-related cumulative trauma injury until a 

medical professional tells the claimant a condition is work-related. Thus, for 

cumulative trauma injuries, the obligation to provide notice arises and the 

statute of limitations does not begin to run until a claimant is advised by a 

physician that he has a work-related condition. 

As the Board noted, the ALJ in this case did not make a factual 

determination concerning when Goodgame-was advised he had a work-related 

condition. Rather, she simply chose the last day he worked in Kentucky as the 

date of accident and calculated the running of the statute of limitations from 

that date. Thus we agree with the Board that the ALJ must, on remand, make 

that determination. 

Consol argues, and the dissenting opinion from the Court of Appeals 

opines, that the manifestation date of Goodgame's injury is irrelevant because 

KRS 342.185(1) acts as both a statute of limitations and a statute of repose. "A 

statute of limitations limits the time in which one may bring suit after the 

cause of action accrues, while a statute of repose potentially bars a plaintiff s 

suit before the cause of action accrues." Cos/ow, 877 S.W.2d at 612. For 

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example, the language in KRS 342.316(4)(a) that requires a claimant to file an 

occupational disease claim within three years after the last injurious exposure 

to the hazards of the disease or within three years of the manifestation of the 

disease, whichever is later, acts as a statute of limitations, triggered by either 

of those two events. KRS 342.316(4)(a) also contains a repose provision, which 

states that no claim may be filed more than five years after the date of last 

exposure, other than for claims related to exposure to asbestos or radiation, 

which must be filed within 20 years of last exposure. Therefore, if a worker 

was last exposed to the hazards of coal dust in 2009 but did not file a coal 

workers' pneumoconiosis claim until 2015, his or her claim would be barred, 

regardless of when he or she first experienced a distinct manifestation of coal 

workers' pneumoconiosis. 

Unlike KRS 342.316(4)(a), KRS 342.185(1), the injury statute of 

limitations, does not contain statute of repose language. This Court first 

addressed the issue of repose in injury claims in Coslow wherein two claimants 

sought to extend the discovery rule for cumulative trauma cases from Huff to 

single-traumatic-event injury claims. This Court specifically rejected 

application of the discovery rule to such claims absent an "accompanying outer 

time limit or statute of repose." Coslow, 877 S.W.2d at 614. In doing so, this 

Court noted that the legislature had not changed the "date of accident" 

language in KRS 342.185(1), despite having numerous opportunities to do so. 

Id. Thus, this Court refused to read the statute as encompassing a "date of 

discovery" rule for single-traumatic-event injury claims. While this Court 

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addressed the difference between a statute of limitations and a statute of 

repose, it did not specifically hold that KRS 342.185(1) is both. Nevertheless, 

the net effect of the Coslow opinion has been that KRS 342.185(1) acts as both 

in single-traumatic-event injury claims. 

In Manalapan Mining Co. v. Lunsford, 204 S.W.3d 601, 605 (Ky. 2006), as 

corrected (Oct. 18, 2006), as corrected (Nov. 6, 2006), a hearing loss claim, this 

Court specifically held that KRS 342.185(1) acts as both a statute of limitations 

and a statute of repose in cumulative trauma claims. Lunsford, who last 

worked in 2001, testified he had been exposed to hazardous occupational noise 

for 37 years. Id. at 602. In late 2003, Lunsford underwent a hearing exam 

and, in early 2004, a physician advised him that he had a noise-related hearing 

loss. Id. He filed his claim for benefits related to that hearing loss shortly 

thereafter. Id. This Court held that the logic expressed in Coslow of not 

applying the discovery rule to a single-traumatic-event injury, absent a statute 

of repose, applied to cumulative trauma claims. Id. at 605. Therefore, the 

Court held that Lunsford's claim was barred because he did not file it within 

two years of his last exposure to hazardous occupational noise. Id. 

While we agree that KRS 342.185(1) acts as both a statute of limitations 

and a statute of repose, we now disagree with the holding in Lunsford that the 

repose aspect of that statute is triggered by the date of last exposure for three 

reasons. First, the specific statutory repose periods in KRS 342 all begin to 

run when their related statutes of limitations begin to run. In occupational 

disease claims, the date of last exposure triggers the running of both periods. 

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KRS 342.316(4)(a). In HIV claims, the date of injurious exposure triggers the 

running of both periods. KRS 342.185(2). Therefore, there is a clear legislative 

intent that the same date should trigger both limiting provisions. 

In cumulative trauma claims, this Court has determined that, for statute 

of limitations purposes, the date of accident, which triggers the running of the 

statute of limitations, is the date a claimant is informed of a work-related 

cumulative trauma injury. To be consistent with the legislative intent as 

directly expressed in KRS 342.316(4)(a) and KRS 342.185(2), the repose aspect 

of KRS 342.185(1) must also begin to run on the date the statute of limitations 

begins to run - the date a claimant is informed of a work-related cumulative 

trauma injury. 

Second, in Lunsford, the majority tied the limitations and repose periods 

to the last date worked or the date of last exposure to the trauma. We have 

long held that "[w]orkers' compensation is a creature of statute, and the 

remedies and procedures described therein are exclusive." Williams v. E. Coal 

Corp., 952 S.W.2d 696, 698 (Ky. 1997). There is no "date of last exposure" or 

"date last worked" language in KRS 342.185(1). As the majority noted in 

Cos/ow, the legislature has amended KRS 342 numerous times. Id. at 614. 

However, it has not added the aforementioned language to KRS 342.185(1). 

Finally, KRS 446.080 states that 101 statutes of this state shall be 

liberally construed with a view to promote their objects and carry out the intent 

of the legislature . . . ." We have long held that KRS Chapter 342 should be 

construed so as to effectuate its beneficent purposes, i.e. to compensate injured 

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workers for the effects of their injuries. See Bartley v. Bartley, 274 S.W.2d 48, 

49 (Ky. 1954). The majority opinion in Lunsford does exactly the opposite by 

setting a different method for determining the triggering date for the statute of 

limitations and the period of repose. 

In summary, KRS 342.185(1) acts as both a statute of limitations and a 

statute of repose. For single traumatic event injuries the running of both 

periods begins on the date of accident. For cumulative trauma injuries the 

running of both periods begins on the date the injured employee is advised that 

he has suffered a work-related cumulative trauma injury. Therefore, this claim 

must be remanded to the ALJ so that she can determine when Goodgame was 

advied that he suffers from a work-related cumulative trauma injury. She 

must then determine if Goodgame filed his claim within two years of that date. 

To the extent Lunsford holds to the contrary, it is hereby overruled. 

B. Extraterritorial Jurisdiction. 

On cross-appeal, Goodgame argues that the Court of Appeals erred in 

affirming the ALJ's finding that Kentucky does not have extraterritorial 

jurisdiction over injuries suffered in Virginia. KRS 342.670(1) provides that 

Kentucky can, under certain limited circumstances, exercise jurisdiction over 

injuries suffered in other states. However, the ALJ found that: 

[T]he work performed by [Goodgame] in Kentucky was 

substantially different than the work performed in Virginia as it 

relates to the cumulative trauma averred by [Goodgame]. There is 

no evidence of substance that the cumulative trauma (alleged to 

have occurred while [Goodgame] worked in Kentucky) continued 

after he began working in Virginia. 

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As the fact finder, the ALJ has the sole discretion to determine the 

quality, character, and substance of the evidence and may reject any testimony 

and believe or disbelieve various parts of the evidence regardless of whether it 

comes from the same witness or the same party's total proof. Khani v. Alliance 

Chiropractic, 456 S.W.3d 802, 806 (Ky. 2015). If the party with the burden of 

proof fails to convince the ALJ, that party must establish on appeal that the 

favorable evidence was so overwhelming as to compel a favorable finding. 

Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). 

In his appeal to the Board, Goodgame argued that the evidence 

supported his claim that he received additional cumulative traumatic injuries 

while employed in Virginia. However, the Board did not specifically address 

that argument, and Goodgame did not make the argument on cross-appeal to 

the Court of Appeals or to this Court. Furthermore, while Goodgame pointed to 

evidence at the Board level that would have supported a different conclusion, 

he did not point to any evidence that would have compelled a favorable finding 

on this issue. Therefore, we need not address whether Kentucky has 

extraterritorial jurisdiction because the ALJ found that no injury occurred in 

Virginia. However, we agree with the ALJ, the Board, and the Court of Appeals 

that Kentucky does not have extraterritorial jurisdiction over any claim arising 

from a Virginia injury. 

IV. CONCLUSION. 

We affirm the Court of Appeals, in part, and vacate the ALJ's opinion 

finding that Goodgame did not timely file his claim for cumulative traumatic 

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injury suffered in Kentucky. As did the Court of Appeals, we remand this 

matter to the A1,,1 for a proper finding regarding when Goodgame's cumulative 

trauma injury became manifest. If the Al,,J determines that Goodgame's injury 

became manifest more than two years before he filed his claim, she may again 

dismiss his claim. However, if she determines that Goodgame timely filed his 

claim, she must then determine the extent of his disability that is attributable 

to the work he performed in Kentucky. 

All sitting. All concur. 

COUNSEL FOR APPELLANT/CROSS-APPELLEE, 

CONSOL OF KENTUCKY, INC.: 

Jeffrey Robert Soukup 

COUNSEL FOR APPELLEE/CROSS-APPELLANT, 

OSIE DANIEL GOODGAME, JR.: 

Sherry Brashear 

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